View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Washington University St. Louis: Open Scholarship Washington University Journal of Law & Policy Volume 3 Evolving Voices in Land Use Law: A Festschrift in Honor of Daniel R. Mandelker 2000 Vesting Verities and the Development Chronology: A Gaping Disconnect? John J. Delaney Linowes and Blocher LLP Follow this and additional works at: https://openscholarship.wustl.edu/law_journal_law_policy Part of the Land Use Law Commons Recommended Citation John J. Delaney, Vesting Verities and the Development Chronology: A Gaping Disconnect?, 3 WASH. U. J. L. & POL’Y 603 (2000), https://openscholarship.wustl.edu/law_journal_law_policy/vol3/iss1/24 This Discussions on the State and Local Level is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Journal of Law & Policy by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Vesting Verities and the Development Chronology: A Gaping Disconnect? John J. Delaney* PROLOGUE “The law of vested rights and estoppel must strike a fine balance between the competing interests of the developer and the municipality. A developer needs some protection from changes in land use requirements that prevent him from completing his project or that make completion more expensive. Municipalities need the freedom to revise their land use requirements to meet new land use problems or to implement new land use policies.” 1 INTRODUCTION From time immemorial, or at least since Hadacheck v. Sebastian,2 courts have wrestled, often unsuccessfully, with the uneasy task of striking this “fine balance” when newly adopted land use laws or regulations are applied retroactively against ongoing development projects. The result has been a hodgepodge of ad hoc analyses giving rise to rules based mostly on subjective standards and providing little in the way of reliable guidance to landowners and agencies involved in the development process. Even worse, case law provided mostly by state courts over the past quarter-century is generally insensitive to the uncertainties faced by landowners who must cope with an increasingly complex land use approval process. Doubters need only * AICP. Founding partner of the law firm of Linowes and Blocher LLP in Silver Spring, Maryland, where he has practiced since 1965. Mr. Delaney teaches Land Use Regulation as a member of the adjunct faculty at American University’s Washington College of Law in Washington, D.C., and is also a member of the ALI-ABA Land Use Institute faculty. 1. DANIEL R. MANDELKER, LAND USE LAW § 6.12 (4th ed. 1997). 2. 239 U.S. 394 (1915) (The Supreme Court upheld an ordinance prohibiting the manufacturer of bricks in certain residential areas, even though an existing brick yard’s removal caused severe loss to the owners.). 603 Washington University Open Scholarship p603+Delaney.doc 01/04/01 604 Festschrift [Vol. 3:603 familiarize themselves with the travails endured by Bernadine Suitum and the Del Monte Dunes Development Group on their recent sojourns to the United States Supreme Court.3 In particular, most vesting decisions fail to even acknowledge the critical differences between a single building project and long-term multi-building developments, including planned unit developments, which are subject to numerous regulatory reviews and approvals before obtaining their first building permit.4 The purpose of this paper is to identify some of the anomalies arising from the disjointed body of case law on vested rights, particularly as they affect phased developments. An Appendix is provided setting forth the development chronology, with selected court rulings at each step along the way to demonstrate the disparate nature of vesting jurisprudence. But first, we relate the story of three mythical property owners whose experiences with the law of vested rights may help foster a deeper understanding of the problem. “THE GREAT TERRAIN ROBBERY” A TWO ACT PLAY FEATURING LORRAINE LUCKY, PAUL PLODDER AND QUALITY DEVELOPMENT COMPANY ACT ONE Lorraine Lucky Lorraine Lucky, a homebuilder, acquired a recorded single-family residential lot in the Pristine Acres area of Suburban County in the State of Euphoria. It is the last unimproved lot of what was a 3-lot subdivision which is now fully developed, i.e., subdivision streets, sewer and water and utilities are all in place. Lucky paid $100,000.00 for the lot and applied to Suburban County for a building permit for a duplex dwelling (two dwelling units), as permitted under existing 3. See Suitum v. Tahoe Regional Planning Agency, 117 S. Ct. 1659 (1997); City of Monterey v. Del Monte Dunes at Monterey Ltd., 119 S. Ct. 1624 (1999). 4. See Avco Community Developers, Inc., v. South Coast Regional Comm’n, 553 P.2d 546 (Cal. 1976), a leading case on vested rights. https://openscholarship.wustl.edu/law_journal_law_policy/vol3/iss1/24 p603+Delaney.doc 01/04/01 2000] Vesting Verities and the Development Chronology 605 zoning. The costs and filing fees were $7,000. The building permit was issued, but two weeks later the newly elected Suburban County Council enacted a “Revised Zoning Ordinance” (“RZO”) which, among other things, prevented duplex residences in all single-family residential zones. By this time, Lucky had commenced construction of footings for the duplex units. Paul Plodder Meanwhile, just a few blocks away from Lucky’s lot, Paul Plodder, a small homebuilder, has nearly completed development of his 5-lot residential subdivision in Pristine Acres. He had finished grading and paving the subdivision street in front of his lots and was installing sewer and water connections pursuant to County-issued permits. Several months ago, after conducting due diligence in which he confirmed that under applicable zoning ten duplex units could be built on the five lots and that the lots had received preliminary subdivision plan approval, Paul purchased the lots for $400,000.00. His engineering costs for obtaining record plat approval, requisite permits for required street, utility and stormwater management improvements, together with construction costs for these facilities, amounted to $200,000.00. Building permit applications had been filed with Suburban County two months behind schedule due to an unexplained delay in issuing sewer and water permits. As of the date of enactment of the RZO, no building permits had been issued to Plodder, nor had he received any building permits or commenced any construction of the planned duplexes. Quality Development Company On the date that Suburban County enacted the RZO, Quality Development Company (“Quality”) was heavily involved in development activity for Phase 2 of its approved 500-acre mixed use residential community in the Flower Valley area of Suburban County. Quality had acquired the land over a decade ago, after the County had adopted a new master plan designating the property for “planned community residential-mixed use” development. A new zoning cate- gory was created by the County Council to accommodate the proposed PUD at an overall density of five dwelling units per acre, Washington University Open Scholarship p603+Delaney.doc 01/04/01 606 Festschrift [Vol. 3:603 for a total of 1,300 single-family detached residences, 600 attached dwellings (duplexes or townhomes) and 600 apartment units. A 15- acre community shopping center was also authorized. The master plan and zoning ordinance called for set-asides of 80 acres for parkland, recreation areas and school sites. In reliance upon these actions, Quality purchased the property for a price of $50 million, and obtained County approval of a Concept Plan for the PUD. Thereafter, Quality incurred over $3 million in development costs for Phase 1 of five planned phases including lot layouts, construction of roads, utility lines and related infrastructure, and dedication of 12 acres for recreational uses and park areas. All of this work was conducted pursuant to approved site and subdivision plans for Phase 1, which consisted of 200 detached single-family homes and 60 apartment units. In addition to development activity on Phase 1, grading, base course road construction, and dedication of 50 additional acres for park/recreation space was completed for Phases 2, 3 and 4 of the PUD in accordance with the approved Concept Plan. (Phase 5, the commercial component, was to be built last.) Stormwater management plans and permits for road construction for the first four phases had also been approved. The newly enacted RZO reduced residential densities in all planned unit developments in the County by 60%, leaving Quality with a density of two dwelling units per acre. As of the date of enactment of the RZO, Quality had obtained 100 building permits for Phase 1 and had started or completed construction of 70 dwellings. It had received no building permits for any other phase of its PUD. THE DOCTRINES OF VESTED RIGHTS AND EQUITABLE ESTOPPEL Much has been written on the law of vested rights and equitable estoppel, and it is not the purpose of this article to delve deeply into the evolution of these doctrines.5 Generally speaking, courts have 5. See, e.g., MANDELKER, supra note 1, at §§ 6.12-6.23; G.P. Hanes & J.R. Minchew, Vested Rights to Land Use and Development, 46 WASH. & LEE L. REV. 373 (1989); Benjamin A. Kudo, Nukolii: Private Development Rights and the Public Interest, 16 URB. LAW. 279 (1984); Wendy U. Larsen & Steven M. Elrod, An Update on Vested Rights, LAND USE LAW & ZONING DIG., Aug. 1983, at 4 (1983); Greg Overstreet & Diana M. Kirchheim, The Quest for the Best Test to Vest: Washington’s Vested Rights Doctrine Beats the Rest, 23 SEATTLE U. L. https://openscholarship.wustl.edu/law_journal_law_policy/vol3/iss1/24 p603+Delaney.doc 01/04/01 2000] Vesting Verities and the Development Chronology 607 applied two basic standards in determining whether a right has been acquired to complete a development conceived before the proposed or actual change in regulations.